Introduction

Adultery is an offence in India, culpable with up to five years detainment under Section 497 of
the Indian Penal Code, 1860. When one sees the reality, the first response is like a shock at the
State's obvious interruption into the apparently private sexual domains of life. The paper starts
considering standards managing criminalization of direct, to decide if some principled avocations
exist for criminalizing Adultery.

Adultery had been brought under discipline almost 163 years back under the Penal Code 1860
where women were exempted from any reformatory obligation. In spite of the fact that many
arrangements of the Code had been altered amid the traverse and request of time, the
arrangements of Adultery stay unaltered. The significant lawful arrangements have all the
earmarks of being unlawful however the legal elucidations are still for them. This measures the
arrangements of Adultery from lawful and social point of view of 21st century. It is investigated
that the law of Adultery is not only just damaged yet in addition initiates the additional conjugal
sexual connections. Obviously, the law ensures the women but since of its shortcoming, the law
makes the women more powerless in the public eye and furthermore denies them of legitimate
insurance. In the wake of dissecting the issue from every single corner, the article reasonably sets
up the need of correction of the Code.1

The main objective of this paper is to analyze the gender neutrality of the section 497 of the
Indian Penal Code, 1860 which deals with adultery. Adultery in India is a criminal offence which
is committed by a third person against a husband in respect of his wife and of which a man can
alone be held liable for the offence. The law of adultery is not applied on a woman.The object of
the law is to inflict punishment on those who interferes with the sacred relation of marriage, and
the legislature as well considers it to be an offence one who interferes in the sacred matrimonial
home.However, the framers of the Code did not include adultery as a crime; it was only after the
recommendation of the Second Law Commission it was added to the Code.2

1
Gosain, Pranav, LAWS RELATING TO ADULTERY IN INDIA- AN ANALYSIS,(available at)
www.ijcrt.org, Volume 6, Issue 1 January 2018,(last visited on October 8,2023)
2
Bag, Amartya, Adultery and the Indian Penal Code: Analysing the Gender Neutrality of the Law (June 20, 2010).
Available at SSRN: https://ssrn.com/abstract=1627649 ,(last visited on October 8,2023)

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EVOLUTION IN INDIA

The Law Commission of India attempted an exhaustive correction of the IPC, furnishing in the
42nd report. The Report gave data about the authoritative history of Section 497, and offered an
examination with the position in France, England, and the United States of America. The
Commission offered itself discussion similar like the ones we are centering upon here:
questioning both the criminalization of Adultery as such and its specific indication in Section
497. In the wake of throwing grave questions over the implied advantage of criminal activities
for two-faced direct, the Commission noted that “though some of us were personally inclined to
recommend repeal of the section, we think on the whole that the time has not yet come for
making such a radical change in the existing position”.3

The Commission suggested following changes: expulsion of the exception from obligation for
ladies, and diminishment of sentence from five to two years. The Report does not demonstrate
what drove the Commission to think abrogating Adultery as radical, nor does it outfit any
supports. The Amendment never happened, yet the contemplation was followed up in the
following endeavor at reexamining the IPC which finished in the 156th Report of the
Commission.4

Here, the perceptions made in the 42nd Report were repeated alongside cited passages from the
choice of the Supreme Court in Sowmithri Vishnu v. Union of India,5 where the Court
observed “any changes to Section 497 must originate from the Legislature and not the Court. In a
proposal which it believed reflected the “‘transformation’ which the society has undergone”, the
Commission suggested eliminating the immunity from liability for women while keeping the
five-year imprisonment.

The section 497 of the Indian Penal Code states that: Adultery6 – Whoever has sexual
intercourse with a person who is an whom he knows or has reason to believe to be the wife of
another man, without the consent or connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years, or with fine, or
both. In such case the wife shall not be punished as abettor.
3
Law Commission of India, 42nd Report: Indian Penal Code, 1860 (1971)
4
Law Commission of India, 156th Report: Indian Penal Code, 1860 (1997).
5
Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137.
6
Section 497 The Indian Penal Code, 1860

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The essential ingredients of the section are7;

i) There must be sexual intercourse with the consent of the wife and the penetration must be
sufficient to constitute sexual intercourse necessary to the offence,

ii) Knowledge and reasonable belief that the woman is married to another man and that marriage
should be lawful and

iii) The husband who has complained of the adultery had not consented or connived the act.

On the other hand this section is completely for husband because:

1) No wife can bring to justice, the lover of her husband. But a husband can, with the help of this
section, persecute his wife's lover. This amounts to consider a woman the property of her
husband.

2) If a married man is having a having an affair with an unmarried woman or a divorcee or a

widow, it shall not be treated as adultery under this section. Even if a man is having an affair
with a married woman, it shall not be treated to be a crime under this section, if the husband of
the woman concerned, consents to it or if the affair is carried out with his connivance. This
effectively means that husbands can freely indulge in having extramarital affairs with spinsters,
widows, prostitutes or even married women whose husbands have consented to such a relation,
directly or indirectly.

3) Women cannot file a case of adultery against their husbands under this section, even if he is
having an extramarital affair with a married woman. On the other hand, the husband of an
adulterer wife can not only file a case of adultery against his wife's lover and bring him to
justice, under this section, but can also file for a divorce from his wife, on the ground of adultery,
if the charges brought under this section, are proved.

4) Last but not the least; the section does not even provide any provision which enables the court
to hear the woman against whom the husband brings charges of having indulged in an
extramarital affair.

However, fortunately, in this case, the courts have already agreed that there is nothing in the
section that prevents the concerned woman from being heard at the trial, if she makes an
application to the court to that effect. Basically, this section was enacted, solely and exclusively,
7
Bhattacharjee, Maumita, OFFENCE OF ADULTERY IN INDIA- A STUDY, available at:
https://shodhganga.inflibnet.ac.in:8443/jspui/bitstream/10603/205033/1/offence of adultery study.

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to protect the rights of the husbands. Though the men's rights activists managed to portray this as
a prowomen and anti-men provision of the Indian Penal Code, 1860, merely because of the fact
that an adulterer wife is not punished for adultery and it is the man with whom she was
committing the adultery, who goes behind the bars.8

8
Shekri, Abhinav, THE GOOD, THE BAD, AND THE ADULTEROUS: CRIMINAL LAW IN INDIA, available
at: manupatra.in/newsline/articles/Upload/544A8DA6-AD05-4DDF-8567-ECFA7B089F1E.